As filed with the Securities and Exchange Commission on April 26,
1999
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
CERNER CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 43-1196944
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
|
2800 ROCKCREEK PARKWAY, SUITE 601, KANSAS CITY, MISSOURI 64117
(Address of Principal Executive Offices) (Zip Code)
CERNER CORPORATION
EXECUTIVE STOCK PURCHASE PLAN
(Full title of the plan)
CLIFFORD W. ILLIG, 2800 ROCKCREEK PARKWAY, SUITE 601,
KANSAS CITY, MISSOURI 64117
(Name and address of agent for service)
(816) 221-1024
(Telephone number, including area code, of agent for service)
PLEASE SEND COPIES OF ALL CORRESPONDENCE TO:
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
|
REGISTERED REGISTERED PER SHARE/1/ PRICE/1/ FEE
Common Stock,
$.01 par value 700,000(2) $14.125 $9,887,500 $772
/1/ Pursuant to Rule 457(h) of the Securities Act of 1933, and solely for the purpose of calculating the amount of the registration fee, the proposed maximum offering price per share and proposed maximum aggregate offering price is based on the average of the bid and asked prices of the Common Stock on April 20, 1999 in the over-the-counter market as quoted on the National Association of Securities Dealers Automated Quotation National Market System.
/2/ The provisions of Rule 416 shall apply to this registration statement and the number of shares registered on this registration statement automatically shall increase or decrease as a result of stock splits, stock dividends or similar transactions.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated herein by reference: (i) the Registrant's Annual Report on Form 10-K for the year ended December 31, 1998; and (ii) the description of the Common Stock of the Registrant which is contained in the Registrant's Registration Statement on Form 8-A (File No. 0-15386), including any amendments or reports filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities offered hereby remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents, except in no event shall any information included in any such document in response to Item 402(i), (k) or (l) of Regulation S-K be deemed to constitute part of this Registration Statement.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document which is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of the Common Stock of the Registrant registered pursuant to this Registration Statement will be passed upon by Stinson, Mag & Fizzell, P.C., 1201 Walnut Street, Kansas City, Missouri 64106. As of April 21, 1999, attorneys of such law firm owned in the aggregate 50,892 shares of Common Stock of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Section 145 of the Delaware General Corporation Law (the "DGCL") (i) gives Delaware corporations broad powers to indemnify their present and former directors and officers and those of other enterprises, as well as certain other persons, against expenses, judgments, fines and settlement amounts incurred by such directors, officers or other persons in defense of any action, suit or proceeding to which they are made parties by reason of being or having been a director, officer, employee or agent of the corporation, or of another enterprise at the request of the corporation, subject to specified conditions and exclusions, (ii) gives such directors, officers or other persons who are successful in the defense of any action, suit or proceeding the right to be indemnified, and (iii) authorizes the corporation to purchase and maintain directors' and officers' liability insurance. The indemnification authorized by Section 145 of the DGCL is not exclusive of any other rights to which those indemnified may be entitled under any bylaws, agreement, vote of stockholders or disinterested directors, policy of insurance or otherwise.
(b) Article Tenth of the Registrant's Restated Certificate of Incorporation authorizes the Registrant to agree to indemnify any of its directors, officers, employees or agents, and any person who serves at the request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, to the fullest extent permitted by the laws of the state of Delaware; provided that the Registrant is not permitted to indemnify any person from or on account of such person's conduct which was finally adjudged to have been knowingly fraudulent, deliberately dishonest or wilful misconduct.
(c) In accordance with Section 102(b)(7) of the DGCL, Article Tenth of the Registrant's Restated Certificate of Incorporation contains a provision eliminating a director's personal liability to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted or authorized by the laws of the state of Delaware. Section 102(b)(7) of the DGCL prohibits the elimination or limitation of a director's liability (1) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or knowing violations of law, (3) under Section 174 of the DGCL (relating to unlawful dividend payments or stock redemptions or repurchases), or (4) for any transaction from which the director derived an improper personal benefit.
(d) Section 28 of the Registrant's Bylaws requires the Registrant to indemnify any person (1) against all liabilities and expenses actually and reasonably incurred by such person in connection with any action, suit or proceeding (other than an action by or in the right of the Registrant) or (2) against any amounts paid in settlement and expenses actually and reasonably incurred by such person in an action by or in the right of the Registrant, in either case, by reason of the fact that such person is or was serving as a director or officer of the Registrant or as a director or officer of another enterprise at the Registrant's request; provided that (a) such person must have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the Registrant's best interests and, with respect to any criminal action or proceeding,
that such person must have had no reasonable cause to believe
such person's conduct was unlawful, and (b) the Registrant is not
required to indemnify or advance expenses to such person in
connection with an action, suit or proceeding initiated by such
person unless the initiation of such action, suit or proceeding
was authorized by the Registrant's Board of Directors. Said
Section 28 further provides that the Registrant shall not
indemnify any person for any liabilities or expenses incurred by
such person in connection with an action, suit or proceeding by
or in the right of the Registrant in respect of any claim, issue
or matter as to which such person shall have been adjudged to be
liable to the Registrant, unless and only to the extent that the
court in which the action, suit or proceeding is brought
determines that the person is entitled to such indemnity. If any
person serving as a director or officer of the Registrant or as a
director or officer of another enterprise at the Registrant's
request is successful on the merits or otherwise in defense of
any action, suit or proceeding referred to above, said Section 28
requires that the Registrant indemnify such person against
expenses actually and reasonably incurred by such person in
connection therewith. Prior to indemnifying a person pursuant to
Section 28 of the Registrant's Bylaws, the Registrant must
determine that such person has met the specified standard of
conduct required for indemnification unless ordered by a court
and except as otherwise provided by the immediately preceding
sentence. Such determination must be made by (y) a majority vote
of a quorum of the directors who were not party to the action,
suit or proceeding (or by independent legal counsel in a written
opinion if so directed by a quorum of disinterested directors or
if such a quorum is not obtainable), or (z) the stockholders. If
the determination is adverse to the person seeking to be
indemnified, such person may cause the determination to be made
by a court having jurisdiction over the Registrant. The
indemnification provided by Section 28 of the Registrant's Bylaws
is not exclusive of any other rights to which those seeking
indemnification may be entitled under any statute, the
Registrant's Restated Certificate of Incorporation, the
Registrant's Bylaws, any agreement, vote of stockholders or
disinterested directors, policy of insurance or otherwise, both
as to action in their official capacities and as to action in
other capacities while holding their respective offices.
(e) The Registrant has entered into indemnification agreements with the Registrant's directors, Clifford W. Illig, Neal L. Patterson, Michael E. Herman, Thomas A. McDonnell, Gerald E. Bisbee, Jr., Thomas C. Tinstman, M.D. and John C. Danforth, which, among other things, (a) confirm the present indemnity permitted under the DGCL, (b) provide that, in addition, the directors shall be indemnified to the fullest possible extent permitted by law against all expenses (including attorneys' fees), judgments, fines, and settlement amounts, paid or incurred by them in any action or proceeding, including any action by or in the right of the Registrant, on account of their services as a director of the Registrant or as a director of any subsidiary of the Registrant or as a director, officer, employee or agent of any other company or enterprise when they are serving in such capacities at the request of the Registrant, and (c) provide procedures for notification and defense of a claim. However, no indemnity will be provided to any director on account of conduct which is adjudged to be knowingly fraudulent, deliberately dishonest or wilful misconduct. The indemnification agreements also provide that the Registrant will advance the expenses of defending an action, lawsuit or other proceeding to the indemnified director before
the matter is disposed of if the indemnitee agrees to repay any such advances to the Registrant if it is later determined that he or she was not entitled to indemnification.
(f) Section 28 of the Registrant's Bylaws permits the
Registrant to insure any person against any liability incurred by
such person by reason of the fact that such person is or was
serving as a director or officer of the Registrant or as a
director or officer of another enterprise at the Registrant's
request, whether or not the Registrant would have the power to
indemnify such person under the provisions described above. The
Registrant has obtained directors' and officers' liability
insurance for each of its directors and executive officers which
(subject to certain limits and deductibles) (i) insures such
persons against loss arising from certain claims made against
them by reason of such persons being a director or officer, and
(ii) insures the Registrant against loss which it may be required
or permitted to pay as indemnification due such persons for
certain claims. Such insurance may provide coverage for certain
matters as to which the Registrant may not be permitted by law to
provide indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
A list of the exhibits included as part of this Registration Statement is set forth in the Exhibit Index which immediately precedes such exhibits and is incorporated by reference herein.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post- effective amendment hereto) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Kansas City, State of Missouri, on April 20, 1999.
CERNER CORPORATION
By: /S/ Neal L. Patterson Neal L. Patterson Chairman of the Board, Chief Executive Officer and President |
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Neal L. Patterson Chairman of the Board, April 20, 1999
Neal L. Patterson Chief Executive Office
and President
(Principal Executive Officer)
/c/ Clifford W. Illig Vice Chairman and April 20, 1999
Clifford W. Illig Director
/s/ Marc G. Naughton (Principal Financial April 20, 1999
Marc G. Naughton and Accounting Officer)
/s/ Gerald E. Bisbee, Jr. Director April 20, 1999
Gerald E. Bisbee, Jr.
/s/ Michael E. Herman Director April 20, 1999
Michael E. Herman
/s/ Thomas C. Tinstman, M.D. Director April 20, 1999
Thomas C. Tinstman, M.D.
/s/ Thomas A. McDonnell Director April 20, 1999
Thomas A. McDonnell
/s/ John C. Danforth Director April 20, 1999
John C. Danforth
|
EXHIBIT INDEX
Page
Number Description No.
4(a) Restated Certificate of Incorporation,
as amended through June 29, 1996 (filed
as Exhibit 3(i) to Registrant's
Quarterly Report on Form 10-Q for the
quarter ended June 29, 1996, and
incorporated herein by reference). *
4(b) Bylaws of Registrant, as amended (filed
as Exhibit 3 to Registrant's Quarterly
Report on Form 10-Q for the quarter
ended June 30, 1995, and incorporated
herein by reference). *
4(c) Amended and Restated Rights Agreement,
dated as of March 12, 1999, between
Cerner Corporation and UMB Bank, n.a.,
as Rights Agents, which includes the
Form of Certificate of Designation,
Preferences and Rights of Series A
Preferred Stock of Cerner Corporation,
as Exhibit A, and the Form of Rights
Certificate, as Exhibit B (filed as an
exhibit to Registrant's current report
on Form 8-A/A dated March 31, 1999 and
incorporated herein by reference). *
4(d) Specimen stock certificate (filed as
Exhibit 4(a) to Registrant's
Registration Statement on Form S-8 (File
No. 33-15156) and incorporated herein by
reference). *
4(e) Note Agreement between Cerner Corporation,
Principal Mutual Life Insurance Company,
and Principal National Life Insurance
Company dated July 1, 1994 (filed as
Exhibit 10(a) to Registrant's Quarterly
Report on Form 10-Q for the quarter
ended September 30, 1994, and
incorporated herein by reference). *
4(f) Credit Agreement between Cerner
Corporation and Mercantile Bank, dated
April 1, 1999 (filed as Exhibit 4(d) to
Registrant's Annual Report on Form 10-K
for the fiscal year ended January 2,
1999, and incorporated herein by
reference). *
4(g) Cerner Corporation Executive Stock
Purchase Plan.
4(h) Form of Stock Pledge Agreement for
Cerner Corporation Executive Stock
Purchase Plan.
4(i) Form of Promissory Note for Cerner
Corporation Executive Stock Purchase
Plan.
|
5 Opinion of Stinson, Mag & Fizzell,
P.C., Counsel for the Registrant, with
respect to the legality of the Common
Stock of the Registrant registered
hereby.
23(a) Consent of Registrant's Independent
Accountants.
23(b) Consent of Registrant's Counsel
(contained in the Opinion of Counsel
filed as Exhibit 5). *
_______________________________
|
* Incorporated herein by reference.
CERNER CORPORATION
EXECUTIVE STOCK PURCHASE PLAN
ARTICLE I
PURPOSE
1.1 Purpose. The purpose of the Plan is to advance the interests of the Company, the Company's senior management, and the Company's shareholders by offering the Company's senior management an incentive to purchase shares of the Company's stock on the open market. The Plan is adopted, as follows, effective April 23, 1999 (the "Effective Date").
ARTICLE II
DEFINITIONS
2.1 Certain Defined Terms. Whenever the following terms are used in the Plan, they shall have the meanings specified below unless the context clearly indicates to the contrary:
(a) "Committee" means the Compensation Committee of the Board of Directors of the Company.
(b) "Cause" means, unless otherwise defined in an
employment agreement between an Executive and the Company,
(i) willful and continued failure by an Executive to carry
out the reasonable and lawful policies and directives of the
Committee; (ii) willful engaging by an Executive in
misconduct which causes material injury to, or damages the
reputation of, the Company, as specified in a written notice
to an Executive from the Committee; (iii) any act of
dishonesty of an Executive; (iv) any commission by an
Executive of a criminal offense, other than a minor traffic
misdemeanor; (v) any use by an Executive of an illegal
controlled substance; or (vi) excessive absenteeism other
than for illness, after receiving a warning in writing from
the Committee to refrain from such behavior.
(c) "Change of Control" means any transaction or closely related series of transactions under which (i) any Person, closely affiliated group of Persons or entity, other than those shareholders or lineal descendants of such shareholders (or lineal
descendants of beneficiaries of trusts that are shareholders) of the Company on the date hereof, shall acquire or succeed to the ownership or control of 51% or more of all the issued and outstanding classes of voting stock of the Company or (ii) there is a sale of all or substantially all of the Company's assets.
(d) "Company" means Cerner Corporation, a Delaware corporation, and any successor in interest by operation of law.
(e) "Date of Grant" means, with respect to any Matching Option, the date such Matching Option is granted under the Option Plan.
(f) "Executive" means a director, vice president or key associate of the Company who, as determined by the Committee, is eligible to participate in the Plan, provided that Neal Patterson and Cliff Illig shall not be eligible to participate in the Plan.
(g) "Matching Option" means an option to purchase Shares granted under the Option Plan.
(h) "Option Plan" means the Cerner Corporation Stock Option Plan D of the Company.
(i) "Person" means any individual, corporation, partnership, limited liability company, joint stock company, trust, joint venture, association, or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
(j) "Plan" means this Cerner Corporation Executive Stock Purchase Plan.
(k) "Plan Loan" means a loan given by the Company to an Executive for a Stock Purchase pursuant to the terms of this Plan.
(l) "Pledged Shares" means the Company's shares of common stock, $.01 par value, other than Purchased Shares, that are pledged as collateral for a Plan Loan.
(m) "Purchased Shares" means the Company's shares of common stock, $.01 par value, which are purchased by the Executive pursuant to Section 3.1 of the Plan and any successor shares resulting from a merger, consolidation or other reorganization. Purchased Shares do not include Pledged Shares or those Shares that are purchased pursuant to the exercise of a Matching Option.
(n) "Stock Purchase" means any purchase of Purchased Shares by an Executive pursuant to Section 3.1 of the Plan.
2.2 Pronouns and Titles. The singular pronoun shall include the plural where the context so indicates. Titles are provided in the Plan for convenience only and are not to serve as a basis for definition, interpretation, or construction of the Plan.
ARTICLE III
TERMS OF STOCK PURCHASES
3.1 Stock Purchase. An Executive may make a Stock Purchase under this Plan at the times and on such conditions as may be established by the Committee.
3.2 Financing. The Company may provide a Plan Loan to an Executive to help finance the purchase price of a Stock Purchase on such terms as may be approved by the Committee. Plan Loans will only be made to Executives that elect to participate in the Plan. All Plan Loans shall comply with all applicable laws, including without limitation, the rules and regulations of the Federal Reserve System. Unless modified by the Committee, the specific additional Plan Loan terms are as follows:
(a) Loan Term. All Plan Loans will have a term of five (5) years.
(b) Loan Interest. All Plan Loans will have a market interest rate deemed reasonable and appropriate by the Committee based on the applicable federal rate.
(c) Principal and Interest Repayments. Unless the Executive terminates employment prior to full repayment of a Plan Loan, Plan Loan principal and interest is not due until the end of the five-year loan term. There is no pre-payment penalty if the Plan Loan is repaid earlier than the expiration of the five year term. Executives may also elect to pay interest annually. If interest is not paid annually, it will compound annually.
(d) Repayment upon Termination. In the event of an Executive's termination of employment, Plan Loans shall be repaid in accordance with the terms of Section 3.3 of the Plan.
(e) Collateral. All Plan Loans will be secured by the Purchased Shares and any Pledged Shares.
3.3 One-Year Holding Period. Executives making a Stock Purchase under the Plan shall not resell such Purchased Shares or the Pledged Shares prior to the one-year anniversary of the date of the Stock Purchase. After such one-year holding period has expired, an Executive may resell such Purchased Shares or Pledged Shares; provided, however, that all sale proceeds shall first be used to repay any outstanding principal and interest owed on any Plan Loan that was used to purchase the Purchased Shares.
3.4 Mandatory Plan Loan Repayment in Event of Termination. In the event of an Executive's termination from employment with the Company, the Executive shall repay any outstanding principal and interest on any Plan Loan within the following time period:
(a) 365 days if the Executive's termination of employment is because of retirement, disability, or death;
(b) 180 days if the Executive's termination of employment follows within 6 months of a Change of Control of the Company and is because of any reason other than termination for Cause;
(c) 90 days if the Executive's termination of employment is for any reason other than retirement, disability, death or Cause (and in the absence of a Change of Control or after the time period set forth in (b) immediately above); or
(d) immediately, if the Executive's termination of employment is for Cause.
ARTICLE IV
ELIGIBILITY
4.1 Eligibility. No one other than an Executive shall be eligible to receive a Plan Loan or be eligible to receive a Matching Option under the Plan.
ARTICLE V
THE MATCHING OPTIONS
5.1 Granting of Matching Options for Purchased Shares. At the time an Executive makes a Stock Purchase, the Committee shall cause the grant to the Executive of a Matching Option to purchase one (1) additional Share for each five (5) Shares purchased in
the Stock Purchase. Except to the extent provided in this Article V, the terms of the Matching Option shall be in accordance with the Option Plan.
5.2 Granting of Matching Options for Previously
Purchased Shares Pledged as Collateral. At the time an Executive
makes a Stock Purchase, in addition to any Matching Option
granted pursuant to Section 5.1, the Committee shall also cause
the grant to the Executive of a Matching Option to purchase one
(1) additional Share for each ten (10) Pledged Shares that are
pledged as collateral for the Plan Loan subject to limits established
by the Committee.
5.3 Exercise Price and Date of Grant. The per Share exercise price of each Matching Option shall be the price paid by the Executive for the purchase of Purchased Shares in the Stock Purchase. The date of grant of such Matching Options shall be the date the Executive purchased the Purchased Shares.
5.4 Exercise of Option.
(a) Period. Unless otherwise accelerated pursuant to
Section 5.4(b) of the Plan, and provided the Executive is
and has continuously been an associate of the Company since
the Matching Option's Date of Grant, each Matching Option
shall become exercisable on the seventh (7th) anniversary of
the Option's Date of Grant; provided, however, that
notwithstanding anything herein to the contrary, the period
during which each Matching Option may be exercised shall
expire no later than eight (8) years from the Matching
Option's Date of Grant.
(b) Acceleration. The exercisability of each Matching Option granted under this Plan shall be accelerated depending upon the percentage of Purchased Shares that are owned and have been continuously owned by the Executive on the first, second, third, fourth, and fifth anniversaries of the Date of Grant for such Matching Option. Each Matching Option shall become exercisable according to the following schedule. Accelerated vesting percentages shall be cumulative.
Anniversary of Matching Accelerated Vesting of Matching Options
Option's Date of Grant (Maximum 20%) (% of Purchase Shares currently
owned / required percentage expressed as a
decimal times .20)
1 (Actual % / 1.0) x .20
2 (Actual % / 0.8) x .20
3 (Actual % / 0.7) x .20
4 (Actual % / 0.6) x .20
5 (Actual % / 0.5) x .20
|
ARTICLE VI
ADMINISTRATION
6.1 Duties and Powers of Committee. The Plan shall be administered by the Committee. The Committee shall have full power and authority to construe, interpret, amend, terminate, grant waivers and administer the Plan, and may from time to time adopt such rules and regulations for carrying out the Plan as it may deem proper and in the best interests of the Company. Any such interpretations and rules shall be consistent with the basic purpose of the Plan to allow for the purchase of Company stock and the grant of Matching Options. The interpretation and construction of the Plan by the Committee shall be final, conclusive and binding upon all Persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan, any Stock Purchase or any Matching Option.
6.2 Expenses; Indemnification. All reasonable expenses and liabilities actually incurred in connection with the administration of the Plan shall be borne by the Company. The Committee may employ attorneys, consultants, accountants, appraisers, brokers or other Persons. The Company and its officers and directors shall be fully justified in relying, or acting in good faith upon the advice, opinion, valuations or information furnished by such Persons. All actions taken and all interpretations and determinations made by the Committee in good faith shall be final and binding upon all Executives, the Company and all other interested Persons.
ARTICLE VII
MISCELLANEOUS
7.1 Effect of Plan Upon Other Compensation Plans. Nothing in the Plan shall be construed to limit the right of the Company to establish any other forms of incentive or other compensation for the Executives.
7.2 No Obligation to Exercise. The granting of a Matching Option shall impose no obligation upon the Executive to exercise such Option.
7.3 Effect of Plan Upon Employment. Nothing in the Plan shall be construed as an obligation on the part of the Company to continue the employment of any Executive for any period.
7.4 Notice. Any notice required to be given under the terms of this Plan shall be addressed to the Company in care of its Secretary at its offices at 2800 Rock Creek Parkway, Kansas City, MO 64117, and any notice to be given to an Executive shall be addressed to him or her at the address then on file with the Company. Any notice pursuant to this Plan shall be deemed to have been duly given if and when addressed as aforesaid, registered and deposited, postage and registry fee prepaid, in a post office regularly maintained by the United States Government.
7.5 Governing Law. The Plan and the rights of all persons claiming hereunder shall be construed and determined in accordance with the laws of the State of Delaware.
Dated: April 23, 1999
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (the "Agreement") is made and entered into on this ______ day of _________________,_______, by and between ______________________________ (the "Pledgor"), and Cerner Corporation, a Delaware corporation (the "Pledgee").
WITNESSETH:
WHEREAS, the Pledgor is the owner of
shares of the common stock of Pledgee,(the "Pledged Shares"); and
WHEREAS, pursuant to the terms of the Cerner Corporation Executive Stock Purchase Plan (the "Stock Purchase Plan"), the Pledgor has been offered the opportunity to purchase certain shares of Pledgee; and
WHEREAS, in accordance with the terms of the Stock Purchase Plan, the Pledgor has executed a promissory note payable to the Pledgee, dated , (together with all renewals and extensions thereof, the "Note"), as consideration for a loan received from the Pledgee in the principal amount of _______________ Dollars ($_________); and
WHEREAS, the Pledgor desires to secure the repayment of the Note by the pledge of the Pledged Shares upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual promises and agreements herein contained, the Pledgor and Pledgee hereby agree as follows:
1. Pledge. As security for the due and punctual payment of all amounts due and payable pursuant to the Note, together with accrued interest thereon, the Pledgor hereby pledges, hypothecates, assigns, transfers, sets over and grants to the Pledgee, its successors and assigns a security interest in and lien upon all of the Pledgor's right, title and interest in and to the Pledged Shares and any account in which such Pledged Shares are held. Unless otherwise agreed to by the parties hereto, the Pledgor shall deliver to the Pledgee a stock certificate evidencing all of the Pledged Shares, together with attached stock powers duly endorsed in blank. Said certificates and the Pledged Shares shall be held and disposed of by the Pledgee in accordance with the terms and conditions of this Agreement. The Pledgee is hereby authorized with respect to the Pledged Shares, whether or not there has been any default in the payment or the performance of any obligation secured by the Pledged Shares, to indorse the Pledged Shares in the name of the Pledgor and cause any part or all of the Pledged Shares to be transferred of record into the Pledgee's name or the name of its nominee. During the term of the pledge made hereunder, any proceeds or additional shares of stock, rights, warrants, securities or other property issued or distributed upon or in respect of any of the Pledged Shares,
including any and all such property issued or distributed as the result of any stock dividends, stock splits, reverse stock splits, recapitalizations, reorganizations, exchanges or substitutions or other distribution, whether in liquidation or otherwise, shall be immediately pledged, delivered, paid and set over by the Pledgor to the Pledgee hereunder as additional collateral and shall constitute Pledged Shares for purposes of this Agreement. Pledgor's delivery of such additional shares of stock, rights, warrants, securities and other property shall be deemed to constitute the delivery and pledge thereof to the Pledgee pursuant to this Agreement.
2. Representations, Warranties and Covenants. The Pledgor represents, warrants and agrees as follows:
(a) The Pledgor has the unrestricted right, power and authority to execute this Agreement, to perform the Pledgor's obligations hereunder and to transfer and create a security interest in the Pledged Shares in the manner and for the purpose contemplated hereby.
(b) The pledge and delivery of the Pledged Shares pursuant to this Agreement create a valid and perfected first priority security interest in the Pledged Shares in favor of the Pledgee.
3. Events of Default. The occurrence of any one or more of the following events shall constitute a default hereunder (each an "Event of Default"):
(a) the Pledgor's default in the payment of the Note when due, by acceleration or otherwise, or in performance of any of the terms, agreements or covenants of this Agreement, the Note or the Stock Purchase Plan; or
(b) any representation or warranty made by the Pledgor in this Agreement or in the Note, or any other representation or warranty made or furnished to the Pledgee by or on behalf of the Pledgor, proves to have been incorrect in any material respect when made and remains material and uncured at the time in question; or
(c) the making of any general assignment for the benefit of creditors by the Pledgor or the commencement by the Pledgor of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect; or
(d) the appointment of a receiver, trustee or other similar official for all or substantially all of the Pledgor's property or assets, or the filing of a
bankruptcy petition against the Pledgor in a court of competent jurisdiction that commences an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, which appointment or petition is not contested by the Pledgor, or which appointment or petition is not removed or dismissed within sixty (60) days.
4. Dividends and Voting Rights. So long as no Event of Default shall have occurred and be continuing, the Pledgor shall be entitled (a) to receive any and all cash dividends declared and paid in respect of the Pledged Shares (other than liquidating dividends) and (b) to exercise any and all voting and other consensual rights in respect thereof. So long as no Event of Default shall have occurred and be continuing, if the Pledged Shares or any part thereof shall have been transferred into the name of the Pledgee or its nominee, upon the written request of the Pledgor, the Pledgee or its nominee shall execute and deliver to the Pledgor appropriate powers of attorney or proxies to vote the Pledged Shares.
5. The Pledgee's Remedies Upon Default.
(a) If any Event of Default shall have occurred and be continuing, the Pledgee may do any one or more of the following in such order as it may elect:
(i) cause any or all of the Pledged Shares to be transferred into its name or that of its nominee and obtain registration of such transfer or transfers, without thereby effecting a foreclosure of the pledge evidenced hereby or relieving itself of its obligations under Part 5 of Article Nine of the Uniform Commercial Code as enacted in the State of Missouri, the Pledgor hereby irrevocably constituting and appointing the Pledgee and any nominee of the Pledgee the attorney-in-fact of the Pledgor for such purpose, with full power of substitution;
(ii) vote any or all of the Pledged Shares or revoke any or all proxies or powers of attorney given by the Pledgor and give any or all consents, waivers and ratifications in respect thereof and otherwise act with respect thereto as though it were the outright owner thereof, the Pledgor hereby irrevocably constituting and appointing the Pledgee and any nominee of the Pledgee the proxy and attorney-in-fact of the Pledgor for such purpose, with full power of substitution;
(iii) receive all dividends and all other distributions of any kind on any or all of the Pledged Shares; and
(iv) sell, assign and deliver, at any time or from time to time, in one or more lots, any or all of the Pledged Shares, at any private or public sale, for cash, for credit or for other property, for immediate or future delivery, and for such price or prices and on such terms as the Pledgee, in its sole discretion, may determine, the Pledgor hereby waiving and releasing any and all rights or equity of redemption which it otherwise might have either before or after sale hereunder. Any notification required by law to be given in connection with any sale shall conclusively be deemed reasonable if given not less than ten (10) days prior to the time of any public sale or the time after which any private sale is to be made. The Pledgee, if permitted by law, may bid for and purchase all or any part of the Pledged Shares so sold free from any such right or equity of redemption. For the purpose hereof, any agreement to sell all or any part of the Pledged Shares shall be treated as a sale thereof, the Pledgee shall be free to carry out such sale pursuant to such agreement and the Pledgor shall not be entitled to the return of any of the Pledged Shares subject thereto, notwithstanding that, subsequent to the Pledgee's entering into such an agreement, the Pledgor may have cured all Events of Default.
(b) The proceeds of any sale hereunder of the Pledged Shares and any moneys held by the Pledgee pursuant to this Agreement shall be applied first to the payment of all costs and expenses of collection, sale and delivery, including reasonable attorneys' fees and expenses in connection therewith, whether or not involving a case or proceeding before a federal or state court, and next to such of the obligations of the Pledgor to the Pledgee secured hereby in such order as the Pledgee may in its sole discretion determine. The balance, if any, of such proceeds and moneys shall be paid to the Pledgor or such other person or persons as may legally be entitled thereto. If the proceeds of such sale are insufficient to pay such costs and expenses and to satisfy such obligations of the Pledgor, the Pledgor shall remain liable for such deficiency.
6. Other Rights and Remedies. The rights and remedies afforded to the Pledgee hereunder shall be cumulative and in addition to and not in limitation of any rights and remedies which the Pledgee may have under applicable law, including the Uniform Commercial Code. The exercise or partial exercise of any right or remedy of the Pledgee hereunder or under applicable law shall not preclude or prejudice the further exercise of that right or remedy or the exercise of any other right or remedy of the Pledgee.
7. Waiver. No delay or omission on the part of the Pledgee in exercising any right hereunder shall operate as a waiver of such right or any other right hereunder or under any
instrument or agreement evidencing or relating to any of the obligations secured hereby. A waiver on any one occasion shall not be construed as a bar or waiver of any right or remedy on any future occasion.
8. Return of Pledged Shares. Promptly following the receipt by the Pledgee of payment in full of the Note in accordance with its terms, the Pledgee will, upon written demand by the Pledgor, cause the Pledged Shares, any stock powers related thereto and any other collateral held pursuant to this Agreement, to be redelivered to the Pledgor without recourse to the Pledgee.
9. Reasonable Care. The Pledgee shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Shares in its possession if the Pledged Shares are accorded treatment substantially the same as that which the Pledgee accords its own property; provided, however, that the Pledgee shall have no obligation to (a) ascertain or take action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Pledged Shares, whether or not the Pledgee has or is deemed to have knowledge of such matters, or (b) take any necessary steps to preserve rights against any other parties with respect to any Pledged Shares.
10. Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if personally served on the party to whom such communication is to be given, or on the third day after mailing if mailed to the party to whom such communication is to be given by first class mail, postage prepaid, and properly addressed as follows:
The Pledgor:
The Pledgee:
Attn: Chief Financial Officer
Cerner Corporation.
2800 RockCreek Parkway
Kansas City, MO 64117
11. Expenses. The Pledgor will upon demand pay to the Pledgee the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, whether or not involving a case or proceeding before any federal or state court, that the Pledgee may incur in connection with (a) the administration of
this Agreement, (b) the custody or preservation of, or the sale of, collection from or other realization upon, any of the Pledged Shares, (c) the exercise or enforcement of any of the rights of the Pledgee hereunder, or (d) the failure by the Pledgor to perform or observe any of the provisions hereof.
12. Binding. This Agreement and all of the provisions hereof shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns and may be amended only by a written instrument signed by each of the parties hereto.
13. Continuing Pledge. The pledge made hereunder is of a continuing nature and applies to any and all debt of the Pledgor owing to the Pledgee, and the Pledgee may continue to make loans or otherwise extend credit to the Pledgor at any time and from time to time in reliance upon the pledge made hereunder until the Pledgee actually receives written notice from the Pledgor of the discontinuance hereof in respect of any debt arising or incurred by the Pledgor after the receipt of such notice by the Pledgee; provided, however, that the receipt of such notice shall not in any way whatsoever impair, affect, release or discharge the Pledgee's lien on or rights with respect to any of the Pledged Shares or impair or affect in any way any of the Pledgee's rights, powers, remedies or authority hereunder in respect of any debt or obligation arising or incurred prior to the Pledgee's receipt of such notice, and that this pledge shall remain in effect until all such debt or obligation arising or incurred prior to such receipt, and all interest thereon, has been fully paid or satisfied.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and altogether but one instrument.
15. Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Missouri.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
CERNER CORPORATION.
By:__________________________
Name:
Title:
"PLEDGEE"
PROMISSORY NOTE
$_______________ _______________, _______________
(City) (State)
_______________, 19___
FOR VALUE RECEIVED, on the ______ day of _____________, 199__ I promise to pay to the order of Cerner Corporation, the sum of _______________ Dollars ($_________________) together with interest from the date hereof until paid at the rate of _________ percent (______%) per annum. Interest is payable annually at my option, but if deferred, interest will compound annually at the foregoing interest rate. This Note may be accelerated pursuant to the terms of the Cerner Corporation Executive Stock Purchase Plan.
Name: __________________________
Exhibit 5
[LETTERHEAD OF STINSON, MAG & FIZZELL, P.C.]
April 23, 1999
Cerner Corporation
2800 Rockcreek Parkway
Suite 601
Kansas City, Missouri 64117
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration Statement") of Cerner Corporation, a Delaware corporation (the "Company"), to be filed with the Securities and Exchange Commission on or about April 26, 1999 for the purpose of registering under the Securities Act of 1933, as amended, 700,000 shares of Common Stock, par value $.01 per share ("Common Stock"), of the Company. These shares of Common Stock are proposed to be issued pursuant to the Cerner Corporation Executive Stock Purchase Plan (the "Plan").
We have examined the Restated Certificate of Incorporation, as amended, the Bylaws of the Company, as currently in effect, minutes of the applicable meetings of the Board of Directors and stockholders of the Company, together with such other corporate records, certificates of public officials and other documents as we have deemed relevant to this opinion.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
2. All necessary corporate action has been taken to authorize the issuance of the aforesaid 700,000 shares of Common Stock and all such shares of Common Stock as shall be issued and paid for as described in the Plan shall be, when so issued, legally issued, fully paid and nonassessable.
We hereby consent to the reference to our firm under the heading "Interests of Named Experts and Counsel" in the Registration Statement. We also consent to the inclusion of this opinion in the Registration Statement as an exhibit thereto.
Very truly yours,
STINSON, MAG & FIZZELL, P.C.
By: /s/ Craig L. Evans
Craig L. Evans
|
Exhibit 23(a)
ACCOUNTANTS' CONSENT
The Board of Directors
Cerner Corporation:
We consent to incorporation by reference in this registration statement on Form S-8 of Cerner Corporation of our report dated February 3, 1999, relating to the consolidated balance sheets of Cerner Corporation and subsidiaries as of January 2, 1999 and January 3, 1998 and the related consolidated statements of earnings, changes in equity, and cash flows and the related schedule for each of the years in the three-year period ended January 2, 1999, which report appears in the January 2, 1999 annual report on Form 10-K of Cerner Corporation.
/s/ KPMG LLP
KPMG LLP
Kansas City, Missouri
April 23, 1999
|